1. The primary rule for interpreting written contracts is to ascertain the parties' intent. If the
terms of the contract are clear, the intent of the parties is to be determined from the
language of the contract without applying rules of construction.

3. The burden of establishing unconscionability is on the party attacking the contract.
Whether a contract is unconscionable under the Uniform Commercial Code or the Kansas
Consumer Protection Act is a question of law.

4. In order to defeat summary judgment based on clear contractual provisions due to
unconscionability of the contract, the responding party has an obligation to present
specific facts showing a genuine of material fact bearing on the purported
unconscionability of the contract.

5. Crandall v. Grbic, 36 Kan. App. 2d 179, 138 P.3d 365 (2006), is discussed
and followed
in dismissing litigation of claims arising under a contract which contains a provision
requiring such claims to be submitted to mediation, even if the mediation clause does not
expressly provide for mediation to occur prior to filing suit.

6. It is no abuse of discretion to dismiss an action pursuant K.S.A. 60-212 or K.S.A. 60-256
without exploring alternatives which may be less egregious than dismissal.

GREENE, J.: Sheila Santana appeals the dismissal of her claims generally alleging
negligence, fraud, and violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623
et seq., against Mary Olguin, seller; Joe Danler, realtor; and Tom F. Beard
Inspections, LLC
(TFB), building inspection company, all in connection with her purchase of residential real estate.
The claims against TFB were dismissed based upon language contained in the preinspection
agreement; the claims against Olguin and Danler were dismissed based upon the language in the
real estate purchase contract. Santana contends that the claims were dismissed prematurely and
that the district court erred in construing and applying the language of both agreements. We
disagree and affirm the district court.

Factual and Procedural Background

In late February 2005, Santana executed a contract to purchase residential real estate in
Wichita from Olguin, whose realtor was Danler. The contract contained a provision for the buyer
to elect an inspection of the property for "defects" and a provision that any dispute or claim
arising out of the contract be submitted to mediation. Details of these provisions will be set forth
below. Santana elected to obtain a property inspection, and she retained TFB for these purposes
pursuant to an agreement that contained provisions releasing or limiting liability of the inspection
company.

After closing on the property, Santana discovered problems with the property that she
contends "were not manifestly evident on visual inspection," including animal odors and damage,
dry rot in wood trim elements, and evidence of past water leakage. Ultimately, she brought an
action against all three defendants alleging six claims for relief based generally on negligence,
fraud, and violations of the KCPA.

TFB filed a motion to dismiss or for summary judgment in lieu of answer alleging that the
provisions releasing or limiting liability that were contained in the parties' "Pre-Inspection
Agreement" entitled it to dismissal. Santana opposed the motion, suggesting that she had not
signed the agreement and that the release and limitation of liability provisions should be read "in
context with surrounding facts and circumstances." The district court granted TFB's motion, and
it was dismissed from the suit.

Olguin and Danler answered Santana's petition and included as a defense that Santana had
failed to submit the matter to mediation as allegedly required by the mediation provision in the
real estate purchase contract. Sometime after the filing of these answers, Santana offered to
mediate and ultimately filed a motion to compel mediation. In response, Olguin and Danler filed
motions to dismiss based on Santana's failure to mediate pursuant to the contract. The district
court denied Santana's motion and granted the motions to dismiss these remaining defendants.

Santana now appeals the district court's dismissal of her action against all defendants.

Did the District Court Err in Dismissing TFB

Based on Language in the Preinspection
Agreement?

On appeal, Santana argues that the district court erred in granting TFB's motion for
dismissal or summary judgment based on the unconditional release and limitation of liability
contained in the contract between Santana and TFB. Santana argues (1) the contract both releases
TFB from liability and limits its liability and is therefore ambiguous and should be deemed
unenforceable as a matter of law and (2) Santana should have been afforded a reasonable
opportunity to present facts surrounding the agreement given the question of its
unconscionability.

Santana and TFB entered into a "Pre-Inspection Agreement" which contained a provision
entitled "Unconditional Release and Limitation of Liability." The agreement signed by the parties
obligated TFB to conduct an inspection of the property and also limited the liability that could be
incurred by TFB. The contract was signed by Santana's agent and provided in material parts as
follows:

"The COMPANY agrees to conduct an inspection for the purpose of informing the
CLIENT of major deficiencies in the condition of the property, subject to the
UNCONDITIONAL
RELEASE AND LIMITATION OF LIABILITY below.

. . . .

"UNCONDITIONAL RELEASE AND LIMITATION OF LIABILITY

"It is understood and agreed that the COMPANY is not an insurer and that the
inspection and report are not to be intended or construed as a guarantee or warranty of the
adequacy, performance, or condition of any structure, item, or system at the property address.
The CLIENT hereby releases and exempts the COMPANY and it agents and employees of and
from all liability and responsibility for the cost of repairing or replacing any unreported defect or
deficiency and for any consequential damage, property damage, or personal injury of any nature.

"In the event that the COMPANY and/or its agents or employees are found liable
due to
breach of contract, breach of warranty, negligence, negligent misrepresentation, negligent hiring
or any other theory of liability, then the liability of the COMPANY and its agents and employees
shall be limited to a sum equal to the amount of the fee paid by the CLIENT to the COMPANY
for the inspection and report.

"CLIENT and COMPANY agree that should a court of competent jurisdiction
determine
and declare that any portion of this Agreement is void, voidable or unenforceable, the remaining
provisions and portions shall remain in full force and effect."

We reject Santana's ambiguity argument, concluding the agreement is not ambiguous.
"The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms
of the contract are clear, the intent of the parties is to be determined from the language of the
contract without applying rules of construction. [Citation omitted.]" Anderson v. Dillard's,
Inc.,
283 Kan. 432, 436, 153 P.3d 550 (2007). "An interpretation of a contractual provision should not
be reached merely by isolating one particular sentence or provision, but by construing and
considering the entire instrument from its four corners." City of Arkansas City v.
Bruton, 284
Kan. 815, 832, 166 P.3d 992 (2007). The law favors reasonable interpretations, and results which
vitiate the purpose of the terms of the agreement to an absurdity should be avoided. See 284 Kan.
at 831-32.

In ruling that the provisions were not ambiguous and otherwise enforceable in this case,
the district court relied heavily on Moler v. Melzer, 24 Kan. App. 2d 76, 942 P.2d
643 (1997).
We agree that the Moler opinion is sound and is applicable here. A similar provision
was at issue
in Moler, and a panel of our court held that the provision was clear enough to advise
the vendee
of its purpose and potential effect and constituted a clear expression of the inspector's to limit it
liability. 24 Kan. App. 2d at 77; see also Corral v. Rollins Protective Services Co.,
240 Kan. 678,
683-84, 732 P.2d 1260 (1987) (enforcing a similar limitation of liability clause in a service
agreement).

Santana argues that the release language is inconsistent with the limitation of liability
language, thus making the agreement ambiguous. We disagree. Although the release language
extends to "all liability and responsibility for the cost of repairing or replacing any unreported
defect or deficiency and for any consequential damage, property damage, or personal injury of any
nature," the limitation of liability provision applies broadly to any liability, which
could include
civil penalties or punitive damages that might otherwise be recoverable under "any other theory of
liability." We do not conclude these provisions are necessarily inconsistent, and therefore they are
not ambiguous.

With regard to Santana's alternative argument, that she was precluded from discovering
and proving facts that might have established unconscionability of the agreement, we conclude she
failed to make the necessary showing to preclude summary judgment as a matter of law.

Under Kansas law, "a party who freely enters a contract is bound by it even though it was
unwise or disadvantageous to the party, so long as the contract is not unconscionable. [Citation
omitted.]" Moler, 24 Kan. App. 2d at 77. The burden of establishing
unconscionability is on the
party attacking the contract. Adams v. John Deere Co., 13 Kan. App. 2d 489, 492,
774 P.2d 355
(1989). Whether a contract is unconscionable under the Uniform Commercial Code or the Kansas
Consumer Protection Act is a question of law. Topeka Datsun Motor Co. v. Stratton,
12 Kan.
App. 2d 95, 107, 736 P.2d 82, rev. denied 241 Kan. 840 (1987).

Santana argues that she should have been allowed an opportunity to present facts
surrounding the agreement which affected its conscionability. Such issues included her
out-of-state status, the authority of her agent to sign the agreement, her understanding of the
contractual
language, and the benefits she could have expected. Santana essentially argues she was not able to
set forth elements of various factors for unconscionability because summary judgment was
granted, specifically the factor which examines the circumstances surrounding the execution of the
contract. Wille v. Southwestern Bell Telephone Co., 219 Kan. 755, 758-59, 549 P.2d
903 (1976)

Santana, however, had an opportunity to present such facts at the time of her response to
TFB's motion for summary judgment. Her response to the motion, however, addressed
unconscionability only to this extent:

'. . . the circumstances surrounding the execution of the contract, including its commercial
setting, its purpose and actual effect.' In the present case, the inspection, at least, in part, was
done, because the Plaintiff could not be as personally involved as she might, because she did not
negotiate her house deal at arms length in Kansas. The inspection also interfaces with provisions
of the real estate purchase contract (Exhibit B). Indeed, both contracts are preprinted, and, not
surprisingly, are products of the real estate industry."

We conclude this response was inadequate to establish unconsionability in a manner to
defeat summary judgment. Indeed, Santana had an obligation to present specific facts showing a
genuine issue of material fact. See K.S.A. 60-256(e). As TFB points out, Santana presented no
evidence, in affidavit or otherwise, of her out-of-state status, her agent's authority, or her
understanding of the contract language. Because of Santana's lack of presented evidence and
assertions, there is no indication of inequality of bargaining power or an indication that she could
not have sought a different inspection company if she was dissatisfied with the contract
provisions. See Moler, 24 Kan. App. 2d at 79; see In re Universal Serv. Fund
Tele. Billing
Practices, 300 F. Supp. 2d 1107, 1125-1126 (D. Kan. 2003).

Additionally, given the facts suggested by Santana, the release and limitation of liability
was not hidden within the agreement but written in relatively plain language and set forth after an
all-capital-and-bold heading that clearly and unequivocally signaled the importance of the release
and limitation of liability language. See, e.g., Frets v. Capitol Federal Savings
& Loan Ass'n, 238
Kan. 614, 622, 712 P.2d 1270 (1986) (finding no unconscionability where, among other things,
the relevant provision was "'not buried in a mass of fine print'"); Wille, 219 Kan. at
763-64 (where
terms and conditions were set out in "clearly legible type" and were "not couched in confusing
terms").

We conclude that the parties' preinspection agreement was not ambiguous, that its release
and limitation of liability language was valid and enforceable, and that Santana failed to
adequately demonstrate her unconscionability argument to defeat summary judgment. The district
court did not err in dismissing TFB as a defendant.

Did the District Court Err in Dismissing

Santana's Claims Against the Seller and Realtor

Due to Her Failure to Submit the Claims to Mediation Prior to
Suit?

Santana next argues the district court erred in dismissing her claims against Olguin and
Danler based on Santana's failure to submit her claims to mediation prior to filing suit. She
contends the district court erred in construing and applying the mediation provisions of the real
estate purchase contract. The interpretation and legal effect of a written contract are matters of
law over which an appellate court has unlimited review. Conner v. Occidental Fire &
Cas. Co.,
281 Kan. 875, 881, 135 P.3d 1230 (2006).

The mediation provision of the contract provides as follows:

"29. MEDIATION: Any dispute or claim arising out of or relating to this
Contract,
the breach of this Contract or the services provided in relation to this Contract, shall be submitted
to mediation in accordance with the rules and procedures of the Homesellers/Homebuyers
Dispute Resolution System. Disputes shall include representations made by the Buyer, Seller, or
any real estate broker licensee in connection with the sale, purchase, financing, condition, or
other aspect of the Property including, without limitation, allegations of concealment,
misrepresentation, negligence, and/or fraud.

"Any agreement signed by the parties pursuant to the mediation conference shall
be
binding.

"The following matters are excluded from mediation hereunder: (a) judicial or
non-judicial foreclosure or other action or proceeding to enforce a mortgage or escrow contract;
(b) an unlawful detainer action; (c) the filing or enforcement of a mechanics's lien; (d) any matter
which is within the jurisdiction of a probate court; or (e) violation of Kansas real estate license
laws. The filing of a judicial action to enable the recording of a notice of pending action, for
order of attachment, receivership, injunction, or other provisional remedies shall not constitute a
waiver of the right to mediate under this provision, nor shall it constitute a breach of the duty to
mediate.

"By signing below, the parties hereby acknowledge receipt of the standard
announcement brochure for the Homesellers/Homebuyers Dispute Resolution System, and agree
to submit disputes, as described above, to mediation, in accordance with the
Homesellers/Homebuyers Dispute Resolution System and rules and procedures of the mediation
provider."

In ruling against Santana, the district court relied on this court's opinion in Crandall
v.
Grbic, 36 Kan. App. 2d 179, 138 P.3d 365 (2006). In Crandall, a panel of this
court affirmed the
dismissal of similar claims against a realtor based on a mediation provision identical to the
provision here. Citing the proposition that the law favors reasonable interpretation of contracts,
the court found that "[t]o allow the plaintiffs to attempt mediation to avoid summary judgment
after defendant had devoted time and money defending their suit is unreasonable." 36 Kan. App.
2d at 198. The panel further found that "[a]lthough defendant is entitled to summary judgment on
all issues because of the plaintiffs' failure to prove their claims, the district court was correct to
grant defendant a summary judgment by reason of plaintiffs' failure to timely seek mediation." 36
Kan. App. 2d at 198.

Santana argues on appeal that Crandall does not control because (1) it
misconstrued the
contract language; (2) in Crandall, the parties had expended far more effort and
expense than
here; and (3) here the court had a "less harsh" remedy, i.e., ordering mediation prior
to discovery.
We reject these proposed distinctions and follow Crandall in affirming the district
court.

First, we disagree that Crandall misconstrued the contract. We acknowledge
that the
subject provision does not expressly require that submission to mediation must
precede the filing
of suit and that it could easily have so provided by insertion of the phrase "prior to filing suit."
Nevertheless, we conclude that this sequence is implied or contemplated when considering the
totality of the provision. A material part of the provision is the covenant to submit claims to
mediation in accordance with the "Homesellers/Homebuyers Dispute Resolution System" and its
rules and procedures. The brochure referenced and delivered with the contract describes the
system as an alternative dispute resolution that affords parties an affordable method of "resolving
disputes out of court." Its benefits are described as including "faster than litigation," "less
expensive than litigation," and "discourages litigation of frivolous claims." The brochure posits
"Frequently Asked Questions," including: "If a party signs a contract or an addendum that
contains a mediation clause, is the party required to mediate if a dispute arises?" The answer given
is: "Yes. The signed agreement to mediate is binding, and parties must submit the dispute to
mediation. The agreement to mediate does not bind the parties to results that might be
achieved
during mediation, and parties retain the right to go to court in the event that mediation is
unsuccessful." (Emphasis added.) We conclude from these aspects of the provision that
mediation
is intended to provide an alternative to litigation and thus creates a condition precedent to
litigation that the parties mediate their disputes. Our conclusion is consistent with case law that
has construed contracts with grievance procedures as requiring pursuit of such procedures
prior
to litigation. See, e.g., NEA–Topeka v. U.S.D. No. 501, 269
Kan. 534, 7 P.3d 1174 (2000);
Atterberry v. Ritchie, 243 Kan. 277, 281-85, 756 P.2d 424 (1988); HIM
Portland, LLC v. DeVito
Builders, Inc., 317 F.3d 41, 44 (1st Cir. 2003).

Second, we refuse to distinguish Crandall on the basis that here far less effort
and expense
had occurred when the parties sought to mediate. Although we acknowledge that Santana's
motion to compel mediation was filed earlier in the litigation than in Crandall, we
decline to
specify some criteria for the point at which the parties have gone too far to mediate. As noted by
the panel in Crandall: To allow the plaintiffs to attempt mediation to avoid summary
judgment
after defendant had devoted time and money defending their suit is unreasonable." 36 Kan. App.
2d at 198. This consideration applies here because Santana filed a seven-page six-count petition
against multiple defendants requiring response by answer or motion, the TFB motion proceedings
involved all parties in briefing and argument, discovery vehicles had been drafted and served, and
all this litigation activity occurred prior to the suggestion of mediation. There is no middle
ground; mediation cannot effectively and fully serve its purpose of alternative resolution unless
attempted prior to suit.

Finally, we understand Santana's last argument as suggesting that the district court abused
its discretion in dismissing the lawsuit rather than considering "a less egregious remedy." Judicial
discretion is abused when a judicial action is arbitrary, fanciful, or unreasonable. If reasonable
persons could differ as to the propriety of the action taken by the trial court, then it cannot be said
the trial court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137
P.3d 1030
(2006). We are aware of no authority in Kansas, nor does Santana cite any, that suggests that it
may be an abuse of discretion to dismiss an action pursuant to K.S.A. 60-212 or K.S.A. 60-256
unless less egregious alternatives have been explored. There was no abuse of discretion in the
dismissal of Santana's claims under these circumstances.